Killing Freedom of Information in Ireland

We’ve had sight of new amendments to the FOI Bill 2013 proposed by the Department of Public Expenditure and Reform.

We will be blunt: if passed, Freedom of Information is dead.

TheStory.ie will, in all likelihood, cease all FOI requests. And we will not seek funding from the public to support an immoral, cynical, unjustified and probably illegal FOI fee regime. We will not pay for information that the public already pays for. We will not support a system that perpetuates an outrageous infringement of citizen rights. The legislation was gutted in 2003 and it is being gutted again. More generally the number of requests from journalists from all news organisations in Ireland will fall as a result of these amendments, and the resulting efforts to shine a light on the administration of the State will certainly deteriorate. And secrecy will prevail.

Minister Howlin will likely say “but we’re bringing more bodies than ever before into the FOI regime”. Great Minister, but we won’t have the ability or resources to FOI them. But then I think you already know that. If Mr Howlin was being honest in his so-called reform, he would simply repeal the legislation entirely and be done with it. Open data will be plugged – but open data regimes only release information the Government wants to release.

This blog was started 4 years ago with the pro bono objective of maximising the rights of citizens and journalists to access information from official sources. Within our rights to access information we used the now well known FOI Act 1997/2003, the Access to Information on the Environment Regulations 2007/2011, the UK FOI act, the United States FOIA 5 USC § 552, and the EU’s Regulation 1049/2001.

During that time we submitted over 200 access to information requests, funded by you to the tune of thousands of euro, while also arguing that the fee regime was wrong. As time went on we developed new techniques for seeking data rather than paper, techniques to obtain large amounts of information with a single request, included billions of euro of previously undisclosed public expenditure. We became known for the techniques we were using, and have trained journalists in Ireland on using those techniques, along with training journalists in Serbia, Croatia, Hungary and Spain. The data and documents we obtained made headlines in almost every Irish newspaper, often in many newspapers at the same time. When you see documents like Ireland’s application for a bailout, it was this blog that got it.

We also scanned and made publicly available for the first time historic but important documents. These included the Beef Tribunal Report (almost 1,000 pages), the Glackin Report, and many others.

When those bodies appealed to the High Court we made lengthy submissions throughout the process arguing that they were in fact public authorities. We created legal precedent around the implementation of the AIE Regulations in National Asset Management Agency -v- Commissioner for Environmental Information [2013] IEHC 86, when the High Court agreed that NAMA was in fact a public authority. When NAMA sought a stay on that judgment pending a Supreme Court appeal, we argued (among other things) before the court that such a stay if granted would be a breach of the State’s obligations under the Aarhus Convention by breaching our right to a timely judicial process. The court agreed, and NAMA appealed that to the Supreme Court. Just three weeks ago we asked the Supreme Court for an expedited listing in the case, which was also granted.

All efforts on this case were those of just two citizens, Fred Logue and me, acting in our spare time to try and vindicate ours – and the public’s – right to access information. These are rights we believe are enshrined in our rights to freedom of expression via the European Convention on Human Rights.

Back in July we promised you we would keep an eye on the passage of the FOI Bill 2013. Before that, we made detailed submissions to the Oireachtas Finance committee, both in person and in writing about the original FOI heads of bill. We also participated with the Department of Public Expenditure and Reform (DPER) in an external working group in an effort to make the FOI process (not the law itself) better.

Today we had a look at new amendments DPER proposes to make to the Bill. They are nothing short of staggering. In some ways we are going so far back that we might as well not have an FOI Act in the first place.

First is the changes to Section 12:

This provision kills all requests containing a request for more than one record from more than one division within a public authority. It’s also a proxy fee increase. If you ask for four things from different divisions of the same body, your request fee jumps from €15 to €60. This would kill most requests this blog has ever sent. It would also kill most requests by journalists who are trying to maximise the amount of information they can get for the unjustified €15 fee in the first place. The €15 fee created multifaceted requests.

This provision basically means that you can be charged anything for, well, anything. It gives discretion to officials to charge for moving a mouse or typing on a keyboard. If a public body wishes it, this will kill most FOI requests.

Is this the end of FOI in Ireland, should these amendments pass? Effectively, yes.

And why, you might ask, are all these new and significant amendments appearing now, just before Committee Stage? A cynic would suggest these changes were well considered in advance and are being introduced at the end of the process in order to sneak them in. But we’re not cynical, are we?

He said ‘What do you think about my manifesto? ‘I like a manifesto, put it to the test-o.

Labour Party Manifesto 2011
Labour will restore the Freedom of Information Act so that it is as comprehensive as was originally intended. The fee structure for Freedom of Information requests will be reformed so that cost does not discourage individuals and organisations from seeking information, and the remit of the Freedom of Information and the Ombudsman Acts will be extended to the Garda Síochána, the Central Bank and other bodies significantly funded from the public purse, that are currently excluded.

#fail

Fine Gael Manifesto 2011
Freedom of Information: Restrictions introduced by recent Governments to Freedom of Information in the public sector will be reversed.

#fail

Fine Gael / Labour Programme for Government 2011-2016
We will legislate to restore the Freedom of Information Act to what it was before it was underined
by the outgoing Government, and we will extend its remit to other public bodies including the
administrative side of the Garda Síochána, subject to security exceptions.
We will extend Freedom of Information, and the Ombudsman Act, to ensure that all statutory
bodies, and all bodies significantly funded from the public purse, are covered.
We will introduce Whistleblowers legislation.
We will put in place a Whistleblowers Act to protect public servants that expose
maladministration by Ministers or others, and restore Freedom of Information.

This insight is very important and backs up the later concern Emily O’Reilly had with increasing restrictions imposed on the system by inside vested interests protecting their actions that might not have necessarily been informed by the public interest. It is, however, a very resource hungary instrument but I suppose so is democracy!!

I dealt with a number of FOI requests pre-2000, including one on a very high profile issue.

I operated the Act as I thought it had been intended: maximum release consistent with things like commercial sensitivity, cabinet confidentiality, privileged legal advice, etc. Fees were nugatory, if charged, which in most cases were not.

As a citizen, but clearly with inside knowledge of the process, I thought it worked well on a number of fronts. For example, it made a lot of information, which could be avoided being given in Parliamentary Questions, available, by right, to the requester. An aspect which was not often touched on was the protection it provided for the individual releasing the information. Without it they would have been in contravention of the Official Secrets Act. It was also of some use to whistleblowers who could prime a requester to seek information which they could then release with impunity.

As a civil servant dealing with requests, it drove me insane. Even with the best will in the world, records were not held then in a form which made finding and providing them easy. Filing systems were on a totally different basis which had not anticipated FOI. Most records were hard copy and a far cry from the push-button compilation imagined by the public. No additional resources were made available to those processing requests and simultaneously juggling the day job. The use made by journalists of material, which took a lot of resources to assemble and often contained very meaty material, was often derisory. I recall one file, which took a lot of compiling, simply resulting in the publication of a photo (not included in the file) of a former Supreme Court judge in a pair of shorts on a pier in Kerry. That said, I did have dealings with what I consider serious journalists and I think, in those cases, we ended up mutually respecting each other.

So, overall, my attitude was one of welcome for the 1998 FOI, particularly from the point of view of the citizen.

I’m penning this just to get one person’s thoughts from both sides of the fence on the record.

I don’t have any significant experience of implementing FOI post 2000, but I can imagine that must have been a period of serious retrenchment. The original act was drawn up by Eithne FitzGerald who knew exactly what she was doing, but many of her colleagues didn’t and many of them and their successors were subsequently appalled at how it operated in practice.

Certainly, for a brief period, at any rate, it looked like it was changing the culture. You have been using it since and would be the better judge of how it has now turned out.

Every politician and civil servant hates the idea of anybody being able to uncover their skullduggery; waste of public money,or incompetence.
Would the rest of the media have the goodness to make this outrage a number one issue, and to ignore bread and circus stories about referendums for gay marriages and so forth.?

The only political and institutional reform that this government implements are those that centralise power more and more, while taking every opportunity to limit accountability by the governing class.

Shame to see these late changes despite Ireland’s committment to the OGP and the calls for FOI legislation in Ireland to be in line with other European countries where no fees are charged! Being able to sneek in changes this way basically awards a free pass. I am not sure what a suitable way would be to influence these changes at this stage? Anyone else? We are taking this up as part of the proposals for the OGP action plan but it may be subject to similar ignorance and lack of accountability, and not sure they will make changes to it, yet again. Minister Howlin mentioned ‘abuse of’ FOI requests. My question would be for statistical evidence and why we do not look to other countries and learn from them how to deal with FOI requests if it is really a problem. Why do we do not take on board OGP recommendations and following other countries who allow their citizens to access information for free? We should not be putting a financial threshold on FOI requests. The information should be free for anybody. It is collected on behalf of the people and should should be accessible by the people, by anybody.

I have written to my local TD (Brendan Ryan, Labour) this morning. I will keep you posted on the reply.

Let’s get engaged.

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Hello Brendan,

What is the Labour party’s view on these amendments to the FOI Bill 2013?

The last time I looked, I think the party manifesto in 2011 said something along the lines of: “Labour will restore the Freedom of Information Act so that it is as comprehensive as was originally intended. The fee structure for Freedom of Information requests will be reformed so that cost does not discourage individuals and organisations from seeking information, and the remit of the Freedom of Information and the Ombudsman Acts will be extended to the Garda Síochána, the Central Bank and other bodies significantly funded from the public purse, that are currently excluded.”

Thestory.ie seems to think the new amendments will more or less kill off FOI in Ireland. Please read their point of view here: